[2017] KEHC 544 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

MISC. CIVIL APPL. CASE NO. 5 & 6 OF 2015

N. O. SUMBA & CO ADVOCATES.........................APPLICANT

VERSUS

PIERO CANNOBIO.............................................. RESPONDENT

RULING

The applicant has filed a taxation reference in both Misc. Application number 5 of 2015 and Misc. 6 of 2015 via a notice of motion dated 6th December, 2016 brought under Section 11(2) of the Advocates Remuneration Order, Order 22 Rule 22(1) and Rule 25 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The applicant seeks that the reference be allowed, that the order of 31st October, 2016 by the Deputy Registrar taxing the Advocate/Client bill of costs dated 27th July, 2016 at Ksh.82,569. 00 and Ksh.43,269 be set aside and be substituted with an order taxing the said bills at Ksh.278,125. 00 respectively. The applicant seeks cost against the respondent for the applications. This ruling is in respect to both references.

The application is predicated upon the main ground that the Deputy Registrar applied wrong, non-existent 2009 Advocates Remuneration Order and not the 2014 Advocates Remuneration order yet the advocate had been instructed on 18th September, 2014. The other ground is that the bill of costs was not taxed in conformity with the Advocates Remuneration Order. The application is supported by the affidavit of advocate Nicholas Sumba. The applicant was instructed by the respondent to take over the conduct of the matter from another of advocates.

The respondent-client had sued the defendant for malicious prosecution and unlawful arrest. He prayed for special damages of Ksh.400,000. 00 and declaratory orders that his arrest and prosecution was due to a report by the 1st defendant to the Police and a further order that failure by the AG to properly direct the investigations and the prosecution caused him damage and loss. The respondent also prayed for general damages for the unlawful arrest and malicious prosecution, punitive and aggravated damages, costs and interest. A figure of Ksh.125,000. 00 was deposited by the respondent to the applicant as legal fees. The applicant filed a further affidavit dated 7. 12. 2016 annexing the reasons for the taxation by the taxing master.

The applicant averred that on 23rd June, 2015 the initial firm of advocates took over the matter again and consequently the applicant drew his bill of costs and filed submissions to urge and justify the same. The Deputy Registrar consequently arrived at a total figure of Ksh.82,569. 00 as the fees payable with an order requiring the advocate to refund Kshs.42,431. 00 of the excess legal fees deposited. The reasons for reaching the contested taxation were indicated to be in the ruling of 31st October, 2016.

The application is opposed and the respondent filed a replying affidavit by his counsel, Kazungu Lughanje, dated 20th January, 2017. It is averred that the applicant never took instructions as another firm of advocates had already taken the same and filed the suit. The current respondent’s counsel then took over from that initial law firm and filed an amended plaint before the applicant took over the conduct of the suit. According to the deponent the applicant never set the matter down for pre-trial as it was awaiting a hearing date which the applicant did set. The matter to date has never gone for trial. The Deputy Registrar having applied the correct principles of the law in taxing the bill, the application lacks merit and it should be disallowed with costs.

The applicant submits that the main contention was the reliance on a non-existent remuneration order by the taxing master. It is contended that the applicable remuneration order is that which came into operation on 11th April, 2014 since the applicant was instructed on 18th September, 2014. There is a notice of change of advocates in the applicant’s bundle annexed to the application.

According to the applicant, the respondent had a claim for Ksh.400,000. 00. The instruction fee would be Ksh.65,000. 00 increased by a half which would lead to Ksh.97,000. 00. There was a further unquantifiable claim to which part 2 of Schedule 7 of the Remuneration Order applies which gives discretion to the court. That provision provides that the amount payable ought to be not less than Ksh.20,000. 00 and according to the applicant as the matter was serious as it concerned the reputation of a person, the instruction fee would together with theKsh.97,000. 00 be at least Ksh.100,000. 00 increased by half. According to the applicant, they were only claiming a modest amount of Ksh.150,000. 00 though the scale fees is much more and should therefore have been allowed.

The applicant also submitted that the items covering the drawing of affidavits were each taxed at Ksh.200. 00 instead of Ksh.1,000. 00 increased by half. The same should apply to the items on drawing of necessary documents which were each taxed at Ksh.750 and ought to have been increased by half to make it Ksh.1,125. 00 each. The applicant further submitted that the same principle of increment by half should apply to the item on drawing of a notice of motion to get to the figure of Ksh.4,500. 00. According to the applicant, the items on drawing letters and that of drawing the bill of costs were correctly taxed save that the amount was not increased by half. The applicant in addition submitted that the item on service as per the scale fees would have been Ksh.1,400. 00 increased by half. The applicant pointed out that there was service effected and though affidavits of service were filed in proof thereof, the items were taxed off and no amount given though they had proposed Ksh.5,000. 00. The applicant also raised the issue that Item 12 on copying of documents had 30 pages but only 4 were considered at the rate of Ksh.21. 00. Finally the applicant also raised issue with item 43 on matter coming up for hearing but failing to proceed.

The respondent’s counsel, Mr. Lughanje, submitted that the response to the bill was as per his submissions and he arrived at the figure of Ksh.41,300. 00. According to the respondent’s counsel, the 2014 Remuneration Order would not apply as the suit was filed in 2009. He explained that the applicant came into the picture after the pleadings had already been drafted by another advocate, set the matter for hearing, it did not take off and he applied to cease from acting. The respondent’s counsel then filed a notice of change of advocates. It is submitted that the taxation Officer addressed all items accordingly.

The issues for determination are:

Whether or not the taxation Officer applied the wrong Advocates Remuneration order? Whether or not the taxation Officer applied the wrong principles of law?

The general rule is that this Court ought not to interfere with the findings of the taxing officer. The Court of Appeal in Joreth Ltd Vs Kigano & Associates Civil Appeal No.66 of 1999 [2002] 1 EA 92,[2002] eKLRheld that unless the taxing officer had misdirected himself on a matter of principle, the judge sitting on a reference against the assessment ought not to interfere with the findings. This exception to the general rule was pronounced by Ringera J (as he then was) in First American Bank of Kenya Vs Shah and others [2002] E.A. 64 at 69,as follows:

“First I find that on the authorities, this court cannot interfere with the taxing officer’s decision on taxation unless it is shown that either the decision was based on an error of principle, or the fee awarded was so manifestly excessive as to justify an inference that it was based on an error of principle.”

The question at hand is which advocates Remuneration Order was applicable. In order to put to rest the applicant’s assertion that a wrong Remuneration order was applied and to further establish whether or not this court may interfere with the taxation decision it is important to answer the question of which Advocates Remuneration order was applicable.

The applicable Advocates (Remuneration) Order for the purpose of ascertaining instruction fees would be that which was operational at the time of filing suit. In the bundle of documents annexed to the supporting affidavit there is the amended plaint dated 9th April, 2014 indicating the date of the original plaint as 3rd December, 2009 clearing the air on the particular year of filing of the initial suit. The taxation officer indicated that, “The remuneration order l will tax with is the Advocates (Remuneration) Order 2009 as at when the suit was first filed in the lower Court”

The latest Advocates (Remuneration) Order 2014 which came into effect under Legal Notice (L.N) 45/2014 indicates that there were previous amendments introduced by other legal notices amongst them L.N. 35/2014, L.N 50/2009 and L.N.159/2006. The L.N 50/2009 established the advocates (Remuneration) (Amendment) Order 2009. Therefore the 2009 Order did exist. However L.N 50/2009 did not address or amend Schedule 7 which enumerates the costs of proceedings before a subordinate court. The applicable Remuneration Order was therefore, schedule 7 of the 2014 Remuneration Order.

This situation gives this court jurisdiction to interfere with the decision of the taxing officer. I shall however stand guided by the principles in the case of Truth Justice & Reconciliation Commission (supra) where it was held that:

[25] “…(3) if the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment unless the Judge is satisfied that the error cannot materially have affected the assessment…”

On instruction fees the taxing officer indicated that “I have looked at the pleadings and indeed damages were specifically stated that they sought damages worth Ksh.400,00 . As per the 2009 remuneration order, the instruction fee is set at ksh.42,000 and one half increase of Ksh.21,000 the instruction fee is therefore Ksh.63,000”. The respondent’s submissions on the bill of costs indicated that the basic fee is not solely determined by the money pleaded and that the claim was not a liquidated one, the special damages pleaded were yet to be proved. On the other hand the applicant submitted that the Advocates (Remuneration)(Amendment) Order 2014 was applicable and went ahead to quantify the cost based on the Ksh.400,000 special damages via that scale. The record does not indicate that the taxing officer considered the state the suit had reached when the award of instructions fees was made.

The Court of Appeal in the Joreth Ltd Vs Kigano Case (supra):- held that “The instructions fees is an independent and static item, it is charged once only and it is not affected or determined by the stage the suit has reached.

In the instant suit the main subject matter was loss of reputation which is unquantifiable. The respondent submitted that the claim on special damages is one that must be proved. In Joreth Limited V Kigano & Associates (supra) the Court of Appeal held that:

“We would at this stage point out that the value of the subject matter of a suit for the purposes of taxation of a bill of costs ought to be determined from the pleadings, judgment or settlement (if such be the case) but if the same is not so ascertainable, the taxing officer is entitled to use his discretion to assess such instruction fee as he considers just, taking into account, amongst other matters, the nature and importance of the cause of matter, the interest of the parties, the general conduct of the proceedings, any direction by the trial judge and all other relevant circumstances.”

The matter was not complicated. I state that it was not complicated as the pleadings, the submissions by both parties on the bill of costs and the subsequent ruling do not indicate that it was of a complex nature. Any other preparation the advocate had to make is in my view what a diligent advocate should do to prepare for trial in the ordinary cause of things. In Republic Vs Minister of Agriculture & 2 others Exparte Samuel Muchiri W Njuguna & others (2006) e KLRthe court held that:

“The complex elements in the proceedings which guide the exercise of the taxing officers discretion must be specified cogently and with conviction. The nature of the forensic responsibility placed upon counsel, when they prosecute, the substantive proceedings, must be described with specifity. If novelty is involved in the main proceedings, the nature of it must be identified and set out in a conscientious mode. If the conduct of the proceedings necessitated the deployment of a considerable amount of industry, necessitated the deployment of a considerable amount of industry and was inordinately time consuming, the details of such a situation must be set out in a clear manner. If large volumes of documentation had to be clarified, assessed and simplified, the details of such initiative by counsel must be specifically indicated apart of cause from the need to show if such works have not already been provided for under a different head of costs.”

The Court inPremchand Reichand(supra) held as follows:-

“…. Costs be not allowed to rise to such a level as to confine access to the courts to the wealthy;…”

The Court of Appeal in the Joreth Limited case (supra) held that:

“…. it is not really in the province of a judge to retax the bill. If the judge comes to the conclusion that the taxing master has erred in principle he should refer the bill back for taxation by the same or another taxing officer with appropriate direction on how it should be done. It was stated by the predecessor of this Court in the case ofSteel Construction & Petroleum Engineering (E.A.) Ltd Vs Uganda Sugar Factory Ltd (1970) E.A. 141 per spry JA at page 143:

“Counsel for the appellant submitted, relying on D’Souza V Ferao [1960]EA 602 and Arthur V. Nyeri Electricity Undertaking [1961} EA 492 that although a judge undoubtedly has jurisdiction to re-tax a bill himself, he should as a matter of practice do so only to make corrections which follow from his decision and that the general rule is that where a fee has to be re-assessed on different principles, the proper course is to remit to the same or another taxing officer. I would agree that, as a general statement, that is correct, adding only that it is a matter of juridical discretion.”

I do find that the taxing officer ought to have utilized the 2014 Remuneration Order. An Advocate takes instructions from a client on the basis that the existing Remuneration order shall be used a basis of assessing legal fees. There are pending I our Courts cases which are even ten (10) years old. If one were to instruct an advocate based on what was the prevailing Remuneration Order when the case was filed, very few advocates would take such a brief. The tendency of clients switching advocates at their own pleasure should not be encouraged. Such clients should know that their actions of charging advocates regularly comes with the cost of settling the full instruction fees of the existing advocate even if only minimal work was done.

I do hereby remit the bills back to the taxing officer for taxation. The taxing officer to utilize the 2014 Remuneration order. Each party will meet his own costs of this reference.

Dated and Signed at Marsabit this ....... day of …..2017

S. CHITEMBWE

JUDGE

Dated, Signed and Delivered at Malindi this 14th day of December,2017

WELDON KORIR

JUDGE